Supreme Court puts question mark on NAB’s conduct

The Nation

Paragon Housing case, 87-page ruling says NAB’s conduct throughout in case (against Khawaja brothers) is a clear manifestation of utter disregard for law, fair play, equity and propriety | Discriminatory approach of NAB is affecting its image | The verdict states NAB has not been able to show any illegality in transactions.

ISLAMABAD – The Supreme Court of Pakistan on Monday criticised the National Accountability Bureau for its “lack of professionalism, expertise, and sincerity of cause” which it said was the reason behind “the conviction rate in NAB cases is abysmally low.”

It further said, “The NAB Ordinance from its very inception became increasingly controversial, its image has come under cloud and there is a wide spread perception of it being employed as a tool for oppression and victimisation of political opponents by those in power. It is frequently alleged that the Bureau is being flagrantly used for political engineering.”

The apex court noted this in its detailed verdict issued on a bail petition filed by PML-N leaders Khawaja Saad Rafique and Khawaja Salman Rafique in the Paragon Housing Society case, highlighting severe lacunas in due process and legal procedure by the National Accountability Bureau (NAB).

In the detailed, 87-page ruling, penned by Justice Maqbool Baqar, the court highlighted the definition and purpose of bail as well as due process in criminal cases.

In the beginning of the judgment, Justice Baqir quoted John Stuart Mill saying: “A state which dwarfs its men, in order that they may be more docile instruments in its hands even for beneficial purposes— will find that with small men no great thing can really be accomplished.”

Deprivation of liberty must be considered a punishment

NAB not serving national interest, rather causing irretrievable harm

The verdict said that NAB’s conduct throughout this case is a clear manifestation of their utter disregard for law, fair play, equity and propriety. “Indeed, curbing loot, plunder and combating corruption is a noble cause. Nonetheless, the means, process and mechanism employed therefore should be within the parameters as prescribed and mandated by the law and not in derogation thereof.”

The court noted that the basis on which Chairman NAB decided to proceed in the matter remain unknown. If the purported complaints were the basis, it is not shown as to what exactly was alleged therein, and what information and material was placed before the NAB for it to decide that the nature and conduct of the management of the company fell within the ambit of Section 9 of NAO.

Secondly, it said, there was absolutely nothing before the NAB connecting the petitioners with the company so as to hold them responsible for any misconduct, malfeasance and misfeasance of the company, and to prompt NAB to initiate an inquiry or investigation against them.

The court stated that NAB has not been able to show any illegality in the transactions and or that the petitioners have dishonestly and unlawfully enriched themselves by way of the same.

It added that discriminatory approach of NAB is also affecting its image and has shaken the faith of the people in its credibility and impartiality. The bureau seems reluctant in proceeding against people on one side of the political divide even in respect of financial scams of massive proportion while those on the other side are being arrested and incarcerated for months and years without providing any sufficient cause even when the law mandates investigations to be concluded expeditiously and trial to be concluded within 30 days.

Nonetheless, investigation is often not concluded for months and cases remain pending for years. It is because of lack of professionalism, expertise and sincerity of cause that the conviction rate in NAB cases is abysmally low. The above is certainly not serving the national interest, rather causing irretrievable harm to the country, nation and society in multiple ways.

The judgment said, “In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the accused person at trail by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon.”

It added that the courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship.

The apex court said that from time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases ‘necessity’ is the operative test.

“In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances,” said the judgment.

It maintained that apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson,” the ruling read.

The top court of the country criticised anti-graft watchdog over various actions and processes, saying its “conduct throughout this case is a clear manifestation of their utter disregard for law, fair play, equity and propriety.”

It said, “As per the preamble of the National Accountability Ordinance, 1999 (“NAO”) the bureau has been set up to eradicate corruption and corrupt practices and hold accountable all those persons, accused of such practices and matters ancillary thereto,” the ruling added.

The apex noted that rather than doing any good to the country or our body-politic and cleansing the fountainheads of governance, these laws and the manner in which they were enforced, caused further degeneration and created chaos, since the same were framed and applied with an oblique motive of arm twisting and pressurising political opponents into submission, subjugation and compliance, or remove them from the electoral scene at least temporarily. It read, “These laws were successfully employed as tools to change political loyalties, for splintering and fracturing political parties.”

“Pygmies were selected, nurtured, promoted, and brought to prominence and power. People with notorious backgrounds and criminal credentials were thrust to rule us in various capacities with predictable results. Similarly, those, who caused death, destruction and mayhem in our society were trained, financed, protected, promoted, and eulogised, thus, turning them into Frankenstein’s,” said the verdict.

It added, “Meanwhile corruption, misconduct and malpractice in governance kept growing at exponential rates and became all pervading. None of the state institutions whatsoever remained free from this morass.

It underlined, “In any event despite having all the required information and details, NAB has failed to place before us any material to show, or to otherwise persuade us to believe that the exchange was unfair and/or that the petitioners have through the said transaction illegally enriched themselves at the cost of the company.”

The apex court added that in any view of the matter since the transaction was between private individuals/entities, who were free agents, and has/had no bearing on any public or governmental interest, no exception to the same could have possibly been taken by NAB,” it said.

It further said that the whole episode lays bare the prosecution’s conduct and is a clear manifestation of their scant regard for the mandate of the law and the principles of fairness, equity and propriety.

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